Direct marketing opt-in threat in Digital Economy Bill

On 18 May, the Queen delivered her speech setting out the government’s agenda for the coming Parliamentary session, outlining proposed policies and legislation.

The proposals where heavily criticised by many, who claimed that flagship measures had been ditched, or watered down, to avoid Brexit.

Nonetheless, hidden amongst the proposals, were suggestions at potentially significant changes for the UK’s marketers.

Digital Economy Bill

The Digital Economy Bill, which was outlined in the speech, is intended to ensure that the UK remains at the forefront of the global 21st century economy.

The Bill is split into several parts, covering the legal right to a fast broadband connection, consistent enforcement of intellectual property rights online and offline, and better sharing of publically-held data to improve public services and produce world-leading research and statistics.

Importantly, it also includes a commitment to protect consumers from spam email and nuisance calls. How?

By ensuring that consent is obtained for direct marketing; and

By empowering the Information Commissioner (the “ICO“) to impose fines on those who break the rules.

Why this matters:

The use of direct marketing is heavily regulated. The rules are primarily set out in the Data Protection Act 1998 and the Privacy and Electronic Communications Regulations 2003 (the “PECR“). Those rules are supplemented by various advertising and marketing codes of practice; including the ICO’s direct marketing guidance, which was updated in March this year (you can find our article on that here).

Opt-in consent for live marketing calls?

Opt-in consent is already required to make automated calls transmitting recorded messages and (with limited exceptions) to send e-mails for direct marketing purposes.

However, currently under the PECR, marketers can make live unsolicited calls to numbers of subscribers without their prior consent provided the number has not been registered with the UK’s “do not call list” maintained by the Telephone Preference under contract to Ofcom.

Of course if the number can be combined with other data in possession of the marketer so as to identify the subscriber, then it will classify as “personal data” and the provisions of the Data Protection Act 1998 will be engaged. However, this too allows such activity without the consent of the subscriber if the marketer can show that the processing involved in making the marketing call is necessary for the purposes of “legitimate interests” pursued by the marketer, except where the processing is unwarranted by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.

In the past the ICO has clearly indicated that responsible direct marketing should stand a good chance of qualifying as a “legitimate interest” of a data controller.

However, this regulatory regime looks set to change.

The Queen’s speech suggests that opt-in consent may soon be required to make all live marketing calls for direct marketing purposes.

This is already hinted at in the European Commission’s public consultation on the e-Privacy Directive (which is implemented in the UK by the PECR). This questions whether EU Member States should retain the possibility to choose between a prior consent (opt-in) and a right to object (opt-out) regime for live marketing calls.

Greater enforcement powers for the ICO?

The Queen’s speech also refers to the need to empower the ICO to impose fines on those who break the rules.

The ICO is already very active in enforcing breaches of the rules on direct marketing. Just this month, Advanced VoIP Solutions Ltd was fined £180,000 after it bombarded households with 50 nuisance calls a day. On the same day, Quigley and Carter Limited was fined £80,000 for sending thousands of spam text messages.

So, how will the ICO be empowered to impose more fines? There is little indication, in the speech itself, of how this would be done. One suggestion is that the ICO’s direct marketing guidance may be put on a statutory footing, meaning that it could be considered by the courts. Baroness Neville-Rolfe, Minister for Intellectual Property, has recently supported those proposals.